A. F. v. North Blenheim Mutual Insurance Company, 2017 CanLII 33674

Date: 2017-04-07

Tribunal File Number: 16-002336/AABS

Case Name: 16-002336 v North Blenheim Mutual Insurance Company

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8., in relation to statutory accident benefits.

Between:

A. F.

Applicant

And

North Blenheim Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR: Avvy Go

APPEARANCES:

Counsel for the Applicant: Miguel Maruszki

Counsel for the Respondent: Richard Shaheen

HEARD: Written Hearing: March 13, 2017

REASONS FOR DECISION AND ORDER

1. The applicant was injured in a motor vehicle accident in March, 2014. He has applied to the Tribunal for the resolution of a dispute with the respondent insurance company over his entitlement to statutory accident benefits.

2. The applicant filed an Application for Mediation dated March 24, 2016 with the Financial Services of Ontario (hereinafter “FSCO”) for medical benefits, costs of examination, non-earner’s benefits and attendant care benefits. The mediation did not take place and FSCO closed the applicant’s file. The applicant commenced an Application before the Tribunal on August 26, 2016.

3. By order dated December 7, 2016, the Tribunal ordered a preliminary issue written hearing be scheduled for January 6, 2017. The preliminary issue initially to be decided at the hearing was as follows:

a) Are the following benefits statute barred due to a two year-limitation period from the date of denial?

• Is the applicant entitled to receive a non-earner benefit in the amount of $185 per week for the period of September 24, 2014 and ongoing, benefit denied on August 7, 2014?

• Is the applicant entitled to receive a medical benefit for physiotherapy services by Complete Care Physio in the amount of $2, 262.80, treatment plan denied on April 30, 2014?

• Is the applicant entitled to receive the cost of attendant care assessment by Downsview Healthcare Inc. in the amount of $1,229.81, treatment plan denied June 11, 2014?

• Is the applicant entitled to receive the cost of a psychological assessment by Downsview Healthcare Inc. in the amount of $1,855.39, treatment plan denied on June 17, 2014?

4. After receiving the parties’ initial submissions, the Tribunal sought additional submissions from the parties in light of a recent Tribunal decision in P.C. and State Farm Mutual Insurance (Tribunal File Number 16-000588/AABS) which dealt with the issue of the two-year limitation period. The parties asked for an extension of time to file their submissions; their request was granted by the Tribunal. The Tribunal has since received additional submissions from the parties.

5. The parties subsequently had a teleconference on March 6, 2017 during which they agreed that the only issue to be dealt with at the preliminary stage is the two-year limitation period. The parties agreed to schedule a resumption of the case conference after this preliminary issue has been decided.

6. As such the only issue before me is the issue of time limitation. For reasons set out below, the Tribunal finds that the benefits in this application are statute barred.

FACTS

7. The applicant, A.F. was injured in a motor vehicle accident (MVA) on March 24, 2014. The applicant’s common law spouse was a passenger in the vehicle driven by the applicant.

8. At the time of the accident, the applicant had retired. He worked as a welder for many years, but was forced to stop working due to a work place injury to his lower back in 1986. The applicant has been receiving a partial pension from Workers Safety Insurance Board (WSIB) since then. The applicant is also receiving a disability benefit from Canada Pension Plan.

9. Since his accident, the applicant has submitted a number of claims to the respondent for benefits. The applicant has also undergone a number of assessments, some of which were conducted at the request of the respondent. Initially, the respondent found the applicant’s injuries fell under the definition of a ‘minor injury’ under the Statutory Accident Benefits Schedule, effective September 1, 2010 (the Schedule), and as such denied a number of benefits as the applicant was found to be subject to the $3,500 limit referred to in s.18(1) of the Schedule. In March, 2016, the respondent found the applicant met the diagnostic criteria for an Adjustment Disorder with mixed anxiety and depressed mood. As a result, the applicant’s injuries are not predominantly minor injuries and his treatment does not fall within the MIG.

10. The applicant filed an Application for Mediation at FSCO on March 24, 2016, which was within the time limits as set out in the Schedule. On April 14, 2016, the applicant received a Response to the Application for Mediation from the respondent. On May 5, 2016, a letter from FSCO set the mediation for May 24, 2016. The letter specified that the mediation is deemed failed unless settlement is achieved within 60 days of the filing of the Application for Mediation. On May 6, 2016, the representatives for both parties mutually agreed via telephone discussion to reschedule the said mediation date; the request was not conveyed to FSCO. By a letter dated May 19, 2016, FSCO notified the applicant that his file has been closed because “mediation meeting was not confirmed by both parties … 7 days prior to the meeting date as required”.

11. The applicant then commenced his application with the Tribunal on August 26, 2016.

THE LAW

12. Section 56 of the Statutory Accident Benefits Schedule, Effective September 1 2010 (the “Schedule”) provides that an application under subsection 280(2) of the Insurance Act in respect of a benefit must be commenced within two years after the insurer’s refusal to pay the amount claimed.

ANALYSIS

Are the benefits claim statute barred?

13. In determining whether or not the applicant’s claims are statute barred, the first issue that I must first decide is whether or not the mediation has “failed”, in accordance with the applicant’s submission, or it simply “did not take place”, as the respondent has argued.

14. In his initial submissions, the applicant argued, among other things, that it is unreasonable to dismiss the application as the respondent had full knowledge of the disputes in question, and that the applicant had adhered to all the statutory limitation periods.

15. In his most recent submissions, the applicant continued to submit that he has satisfied and adhered to the limitation periods by applying for mediation within the 2-year limitation, and that he ought not to be barred from disputing the benefits at issue “due to the lack of guidance or transition provisions that specifically address this issue”. The applicant argued it would be prejudicial to dismiss his application. Relying on Cornie v. Security National (2012) ONSC 905, the applicant further submitted that as the settlement did not occur within 60 days from the day the application for mediation was filed, the applicant could proceed to arbitration. As such the applicant ought to be able to proceed to the Tribunal as the mediation is deemed failed.

16. In their reply, the respondent relied on Pararajasingam v. State Farm Mutual Automobile Insurance Co. (2015), 2015 CarswellOnt 17263 (FSCO Arb.) to support their position that the two year limitation has run out because the mediation did not fail, but instead it simply did not take place. The respondent argued that the decision in Pararajasingam confirms that a mediator could deem that the mediation did not take if a party does not comply with rule 17.1 of the Code.

17. In their further submission, the respondent argued that even if the best position of the applicant was accepted that the mediation failed as of May 19, 2016, the applicant still did not file his application to the Tribunal within the 90 day time period.

18. First of all, I do not accept the Respondent’s argument that the applicant could not have made an application to this Tribunal because the mediation did not fail but simply did not take place. Coming to this conclusion , I first turn to the notice issued by FSCO to the applicant dated May 5, 2016, which I have partly reproduced here:

Due to the unprecedented volume of mediation applications received immediately prior to April 1, 2016, the FSCO eCalendar is fully booked up to the end of June 2016.

As you were unable to book a mediation meeting through the eCalendar, FSCO has scheduled your mediation on May 24, 2016 from 8:30AM to 10:00 AM. Both parties must confirm acceptance of the scheduled mediation through the FSCO Case Directory email [email address] seven (7) calendar days prior to the meeting. The mediation file number and # sign, must be on the subject line of your email. Failure to complete this confirmation will result in the file being closed, without a Report of Mediator being issued.

Mediation is deemed failed unless settlement is achieved within 60 days of the filing of the application [emphasis added]. If parties are jointly requesting to extend time for mediation, the Consent to Extend Time for Mediation Form must be completed and returned to FSCO no later than seven (7) calendar days prior to the meeting date noted above. If the extension is for beyond 30 days it requires approval from the Director (s.21(4)) of the Regulation).

It is important to note:

Even if an Application for Mediation was received by March 31, 2016, you may not file an application for arbitration at FSCO or proceed to court following a failed mediation (s.21(6) of Regulation 684). Effective April 1, 2016, applications for dispute resolution will only be accepted by the Licence Appeal Tribunal (LAT). For more information about filing your application with LAT go to:….It is not necessary to complete mediation at FSCO in order to proceed to LAT…[emphasis added].

19. The notice from FSCO dated May 5, 2016 did suggest, as the applicant stated, that mediation is deemed failed unless settlement was achieved within 60 days of the application for mediation. However, it also set out the requirements for parties to file consent to reschedule mediation date, and that the failure to do so would result in the closing of the file. But it also suggested that it is not necessary for parties to complete mediation at FSCO in order to proceed to the current Tribunal. In short, the notice contained conflicting information which may have caused certain confusion, in the midst of a challenging transition from one system of adjudicating insurance claims to another.

20. The challenge of the transition from FSCO to the Tribunal system, and the applicability of a 90-day extension period, was highlighted in Vice Chair Flude’s decision in P.C. and State Farm Insurance Company, supra, where he wrote, at paras 10 and 12:

21. Prior to April 1, 2016 this Tribunal could not accept applications for dispute resolution. An aggrieved person seeking dispute resolution had no option but to apply for mediation at FSCO. If I am to accept the respondent’s argument, that after April 1, 2016 there is no 90 day extension, then all of those applicants whose limitation period expired prior to April 1,2016, but who had applied for mediation and not received a report of a mediator by that date were left without a remedy. They could not apply to FSCO for arbitration since it had no further jurisdiction to accept applications for arbitration. According to the respondent’s interpretation, they also could not apply to this Tribunal because the limitation period had run its course. This clearly is an absurd outcome.

22. In the pre-April 1 Act, a party was required to request mediation as a precursor to commencing any other proceeding (arbitration or court). The legislation then gave those parties an added period within which to commence other proceedings – 90 days from the report of the mediator. The legislation takes a practical approach. Regardless of when the limitation period expires, the limitation period is extended for 90 days beyond the date of receipt of the mediator’s report.

23. I note that the application for mediation was filed just before the new system came into effect, when FSCO was admittedly receiving “unprecedented volume” of mediation requests. I also note, as Vice Chair Flude did in P.C. and State Farm Insurance Company, supra, that if left without recourse, the applicant will potentially be seriously affected by the outcome of this decision. Finally, I also note the very confusing notice issued by FSCO to the applicant with regard to what would come of his mediation request, if it was not resolved within the time limit as set by the FSCO.

24. Further section 280(2) of the Insurance Act, ss.280(2) prescribes that the insured person or the insurer may apply to the Licence Appeal Tribunal to resolve a dispute. As such, I find the Applicant could file an application with this Tribunal, notwithstanding the fact that the mediation between the parties did not take place.

25. That said, I still have to address the respondent’s argument that even with the 90 days extension, the applicant still had not filed his application to the Tribunal within the 90 day extension. As noted above, the FSCO informed the parties on May 19, 2016 it would be closing their file. The 90 day period expired on August 17. The applicant filed his application with the Tribunal on August 26, 2016, about a week after the 90 day extension period had expired.

26. On this point, the applicant submitted that he did not proceed under the pre-April 1 Act to preserve the 90 day extension as there is no legislation or guideline currently in place with the Tribunal that requires him to do so. The applicant pointed to the lack of guidance or transition provisions in this regard to support her position. The applicant also pointed out that the earliest denial from the insurer was in June of 2014. As such, the applicant had filed his application for mediation within the 2 years limitation period. Finally, given the respondent’s full knowledge of the disputes, it would not be prejudicial to the respondent to allow the application to continue. Denying the applicant’s application, the applicant submitted, would put his livelihood at stake, and the prejudice to the applicant far outweighs the inconvenience to the respondent.

27. I am sympathetic to the applicant’s position, and I recognize that the lack of guidance or transition provisions does pose a challenge to parties who, during this transitional period must figure out when to file their applications. However, taking the applicant’s position to its logical conclusion would mean effectively, there is no deadline for filing applications to this Tribunal. While I see fit in applying the 90 days extension under the pre-April 1 Act, as Vice Chair Flude did in P.C. and State Farm Insurance Company, supra, to applications filed under the new system, the applicant has not pointed to any authority which would allow me to extend the limitation periods beyond the 90 days extension.

28. The burden is on the applicant to convince me why his claim is not statute barred. The applicant has failed to meet that burden.

29. Based on all of the above, I conclude that the application by the applicant is statute barred.

ORDER

28. Pursuant to the authority vested in it under the provisions of the Act, the Tribunal finds that the application made by the applicant, A.F. is statute barred.

Released: April 7, 2017

___________________________

Avvy Go

Adjudicator